Nassau County Police Form 38

In this Criminal action, at about 3:40 on the morning in October 1989, defendant was involved in an automobile accident on Grand Avenue in Balwin, Nassau County. A Police Officer responded to the scene and approached the defendant’s vehicle.

A Nassau County Criminal lawyer said that the Police Officer told the defendant to relax and not move because there was a piece of glass imbedded in his neck. When an ambulance arrived, defendant walked to the ambulance which drove him to the hospital. Defendant testified that he lost consciousness on his way to the hospital. Clearly, however, he was not handcuffed or in any other way restrained.

At the hospital, the defendant was taken to the Emergency Room. The Police Officer who rode with him in the ambulance accompanied him to the Emergency Room and remained with him. The Police Officer testified that there came a point at which he read the defendant the Nassau County Police Form 38 warning as to the consequences of his refusal to submit to a blood test and the defendant indicated that he understood. The defendant wrote “consent” on the form and signed it.

Although the defendant denied reading or having read to him the Form 38, he acknowledged the authenticity of his signature on the document. The signature reflects that the defendant was under some stress and the defendant testified that he would periodically lose consciousness.

After being treated, the defendant was driven to Police Headquarters for processing. At approximately 8:55 A.M. he was asked a series of questions from Police Form 79 by the Desk Sergeant in the Police Officer’s presence. The defendant signed at the bottom of the form indicating he had read the answers and they were accurate.

The defendant contends that his consent to a blood test was not voluntary and that the results of the test should be suppressed. His argument rests on the false assumption that he had a right to refuse. Section 1194 (subd. 2(a)) provides that a person who operates a motor vehicle in this state is deemed to have consented to a chemical test of his blood, breath, urine or saliva. The New York Court of Appeals has applied a jurisprudence holding that a defendant has no constitutional right to refuse to submit to a proper request for blood, breath, urine or saliva except as granted by statute. Instructively, the argument that evidence of a refusal should be suppressed where the refusal was not knowing and intelligent has been rejected by the Appellate Division, Second Department, on the grounds that, “This interpretation would lead to the absurd result that the greater the degree of intoxication of an automobile driver, the less the degree of his accountability.” This rationale applies equally to consent.

The court notes that there was no issue raised at the hearing as to Officer Swain’s probable cause to arrest the defendant for driving while intoxicated. With respect to the statements on the form 79, the defendant was clearly in custody and, as the People concede, the statements cannot be used affirmatively at trial. However, defendant seeks to preclude their use for impeachment, arguing that they were involuntary.

In a case law, the United States Supreme Court held the statements suppressible for Miranda violations could nevertheless be used for impeachment purposes should a defendant testify. However, for statements to be so used, they must be voluntary. While no Miranda warnings were given in this case, there is no evidence that the statements to the desk sergeant were other than voluntary. This DWI rule and its rationale look like a privilege and sound like a privilege, but it is not one of the privileges recognized under New York law.

Accordingly, the court finds that there is no blanket rule suppressing Form 79 statements.

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